Transport Accident Commission of Victoria v; Leslie Ross Yarham [2016] NSWSC 1791

Supreme Court New South Wales

Medium Neutral Citation: Transport Accident Commission of Victoria v; Leslie Ross Yarham [2016] NSWSC 1791 Hearing dates: 29 April 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Jurisdiction: Common Law Before: Hall J Decision: 1. A declaration that the assessment decision of the Claims Assessor, the Second Defendant, made on or about 25 September 2015 purportedly pursuant to s 92(1)(b) of the Motor Accidents Act 1999 was affected by jurisdictional error and accordingly was invalid. 2. An order that the First, Second and Third Defendants refrain from acting on or taking any step in reliance on the assessment decision referred to in Order (1). 3. A declaration that, by reason of the provisions of s 150A(1) of the Workers Compensation Act 1987 the substantive law that governs: a) Whether or not a claim for damages by the First Defendant in respect of injuries allegedly suffered by him in a motor vehicle accident on 18 July 2010 on the Newell Highway in New South Wales, can be made; and b) If it can be made, the determination of the claim is the substantive law of the State of Victoria. 4. In accordance with s 98 of the Civil Procedure Act 2005 and UCPR Part 42, r 42.1, costs of the proceedings should follow the event. I accordingly make an order that the First Defendant pay the plaintiff's costs subject to any submission on cost made upon delivering this judgment today, or otherwise as necessary upon relisting of the proceedings at 10:15am on Wednesday 14 December 2016. Catchwords: WORKERS COMPENSATION – practice and procedure – whether claims assessor erred in determining that claim was within jurisdiction conferred by the Motor Accidents Compensation Act 1990 – whether claims assessor erred by failing to ask and answer question whether the claim involves complex legal issues – whether substantive law of NSW or Victoria is applicable to the claim brought by the First Defendant Legislation Cited: Accidents Compensation Act 1985 (Vic) Motor Accidents Compensation Act 1999 Transport Accident Act 1986 (Vic) Workers' Compensation Act 1985 (Vic) Workers Compensation Act 1987 Cases Cited: Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Category: Principal judgment Parties: Transport Accident Commission of Victoria (Plaintiff) Mr Leslie Ross Yarham (First Defendant) Mr Andrew Gorman (Second Defendant) State Insurance Regulatory Authority (Third Defendant) Representation: Counsel: Ms M Allars (Plaintiff) Mr A Stone SC with Ms Holz (First Defendant)